Current Intellectual Property Issues
Business Methods
When can your method of doing business be patentable?
The Australian Patents Act sets out the basic criteria that an invention must satisfy in order to be patentable. Provided a “business method” satisfies these criteria, there is no specific bar to its patentability .
In a recent Federal Court decision, Grant v Commissioner of Patents [2006] FCAFC 120, the patentability of business methods was considered at length. It was held that: “it is necessary that there be some ‘useful product’, some physical phenomenon or effect resulting from the working of a method for it to be properly the subject of letters patent”.
Generally speaking, the Patent Office tends to look favourably on computer implemented methods. However, methods that are carried out in absence of any particular technological framework or tangible output are more heavily scrutinised.
By way of comparison, the Australian position is similar to, although perhaps less liberal than, that of the United States of America. In contrast, the UK and Europe have generally excluded business methods from patentability.
In the US, patentable subject matter has historically included “anything under the sun made by man” and the US courts have held that business methods are not inherently unpatentable. Over the past few years, there have been an ever-increasing number of business method patents granted in the US. However, more recently, there has been growing criticism regarding some of these, and a significant court ruling on the patentability of business methods in the US is expected later in 2008.
Click here for a spokesperson The Institute of Patent and Trade Mark Attorneys of Australia (IPTA) is the peak professional body representing Australian patent and trade mark attorneys.
Phone Australia: 03 9819 2004. Email: mail@ipta.org.au
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